I promise you that we [Senate Republicans] will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up," McCain said. "I promise you. This is where we need the majority, and Pat Toomey is probably as articulate and effective on the floor of the Senate as anyone I have encountered.

If we take McCain at his word, this is quite an explicit pledge, much more so than the Sen. Mike Lee interview that led off my piece yesterday. It advances the most extreme possibility I mentioned in yesterday’s piece, that we could have vacancies that stay open for years while the number of justices shrinks.

That it comes from McCain makes it especially sad or perhaps dangerous, since he definitely ranks near the top of the list of senators who still believe in bipartisan cooperation. Does the name McCain-Feingold ring a bell?

Of course, McCain doesn’t claim to have attended a secret meeting at which all Senate Republicans made a pledge to stonewall Clinton’s nominees. And if the Repubs happened to have a very small Senate majority heading into next year, it wouldn’t take many defectors to create some possibilities.

But still, if McCain’s radio pledge makes you want to clap eyes on a list of the ages of all the current justices, it’s here.

Hat tip to commenters Neal Rovick and Marc Post for pointing out the McCain quote in the thread under yesterday’s piece.

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About the Author:

Veteran journalist Eric Black writes Eric Black Ink for MinnPost. His latest award is from the Society of Professional Journalists, which in May 2017 announced he'd won the national Sigma Delta Chi Award for online column writing.

Comments (28)

Ours is a system not just of checks but also balances, and those are two very different things. In our current governmental crisis two of the three branches of government are now effectively dysfunctional. One of the consequences of this change in the balance is that power is flowing to the executive branch in circumstances where the other two branches are losing the ability to check it. I think it's important to think about what this means for our government and our country.

This is an extraordinary promise by McCain NOT to abide by the rule of law in our country if the Democratic candidate is elected.

I see no difference between what he apparently said yesterday about the GOP Senate majority refusing to deal with any Clinton nominee to the Court and Trump's preemptive whining about "rigged" elections and ominous threats to disrupt the country with violence if Clinton beats him.

He says they will block any nomination--this pleases the hardcore base.

He says they will vote on nominations--this does not guarantee anything but it gets it past the hurdle that the majority of people think that hearings should be held for Obama's nominee. This is aimed at trying to not looks so bad to the remainder of voters.

Some polling on the issue:

(quote)

New Public Policy Polling surveys in 6 key battleground states where Republican Senators are up for reelection this year find that voters don’t trust Donald Trump and would rather have Barack Obama picking a new Supreme Court justice than him. As a result they overwhelmingly support hearings on Merrick Garland’s nomination to the Supreme Court, and are inclined to punish the vulnerable Republican Senators who are holding up his selection....

The bottom line is this: voters want the Senate to move forward on Merrick Garland’s nomination to the Supreme Court because they trust Barack Obama’s judgment and they don’t trust Donald Trump to make a decision this important. They overwhelmingly want to see hearings on Garland’s nomination, and they’re inclined to punish Senators who hold up the process. And John McCain, Chuck Grassley, Kelly Ayotte, Rob Portman, Pat Toomey, and Ron Johnson are in a lot of trouble already. Their handling of the Supreme Court issue just compounds their already perilous paths to reelection.

…Neal Rovick's final sentence seems to be an accurate summation. Though I've almost never agreed with Senator McCain's take on most issues, I've had a great deal of respect for a man who has given far more to his country than most members of his own political party. That respect is now considerably diminished. Holding hearings and taking "up" or "down" votes on potential presidential appointees is part of the job of the U.S. Senator according to the Constitution that Republicans like to say they alone revere. This stance regarding SCOTUS nominations makes that faux reverence an obvious lie.

"Written in 1787, ratified in 1788, and in operation since 1789, the United States Constitution is the world’s longest surviving written charter of government. Its first three words – “We The People” – affirm that the government of the United States exists to serve its citizens. The supremacy of the people through their elected representatives is recognized in Article I, which creates a Congress consisting of a Senate and a House of Representatives. The positioning of Congress at the beginning of the Constitution reaffirms its status as the 'First Branch' of the federal government.

"The Constitution assigned to Congress responsibility for organizing the executive and judicial branches, raising revenue, declaring war, and making all laws necessary for executing these powers."

As Eric pointed out in a previous article on this topic, the Constitution says, "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court."

This Oath of Office is sworn by every Senator before taking office. With slightly different wording, House Representatives and the President do the same. The Oath of Office is mandated by Article VI of the Constitution:

"I, A_____ B_____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

To repreat the above, "The Constitution assigned to Congress responsibility for organizing the executive and judicial branches, raising revenue, declaring war, and making all laws necessary for executing these powers."

In the case of the current Supreme Court vacancy, Congress has shirked its responsibility to "organize the judicial branch" and prevented ("obstructed") the President of the United states from fulfilling his.

And even though the U.S. has been engaged in military actions in foreign lands for 15 years and spent Trillions of Dollars of Taxpayer's Money on those actions ($75,000 per YOUR household, as of last year) -- devastating actions that have killed, injured, maimed thousands of young American men and women and HUNDREDS of thousands of foreign civilians -- Congress has failed in its responsibility to "declare war" and failed in its responsibility to "raise revenue" sufficient to pay for "all laws necessary for executing these powers."

The majority of Congress is and has been (grossly) negligent in fulfilling their Constitutional responsibilities. They have been violating their Oath of Office and, essentially, thumbing their noses at most of "We The people."

Why? "Mental reservations" and the "purpose of evasion."

Anyone who believes that the Constitution of the U.S.A. is as important to the health, vitality and survival of America as "strict Constitutionalists" claim it is should never vote for any legislator, or would-be legislator, who cannot handle doing all they can to honor, live up to, fulfill that Oath of Office, regardless (of "party" or "ideology").

If you can't stand that kind of Constitutional heat, get out of the kitchen . . . (Don't run in the first place, or go home and start collecting your Taxpayer-funded $100,000-plus pension and stop trying to pass yourself off as one of America's -- or one of America's could-be next -- Great Chefs.)

But is that really what is happening here? Or rather a gross miscalculation of what a party's interests really are? Bear in mind that the result of Republican obstructionism over the last eight years is Donald Trump, a presidential candidate who is indifferent to his party's interests who may well end up destroying it.

In Clarence Thomas, a Democratic senate majority confirmed a Republican president's Supreme Court nomination. Was my party pure back then, putting the country's interests ahead of it's own? Or did it simply calculate correctly, unlike the Republican Party of today, that a policy of obstructionism would be destructive to it's own interests? Is it just a coincidence that the party, surely against it's better judgment, which put Clarence Thomas on the Supreme Court, also won the next two presidential elections and has won the popular vote in every presidential election since then except in 2004?

No, what has happened is the refusal to accept the legitimacy of any view other than one's own.

It's a fundamental reneging on the compact inherent in a democracy--acceptance of decisions made that may not align with yours but fall within constitutional guidelines and procedures.

So the current way to fight decisions and election results you don't want is to rely on techniques that fall outside of norms and constitution. And to justify those responses you must falsify with respect to the legitimacy of the the other party or office-holder and make it seem that their policies contain a far worse existential threat than your unusual techniques.

It's the hand played by a weak player with bad cards.

And Donald Trump is merely a continuation of this recent Republican tradition.

Trump is history after the election, but the damage these republicans have done and promise to continue is very real and will continue as long as anyone grants them sufficient political power. Remember that.

McCain also reminds us that a person is only as honorable as the last dishonorable thing they've done. McCain brought his party to this disaster when he brought Palin in to what should be his ever-lasting shame and now he's doubling down on shamelessness.

If the democrats take the senate I hope they finally have the guts to change the filibuster rules so wankers like this can no longer block progress with a simple statement.

It is "up to Congress" to decide on how many justices are on the Court by introducing a bill, passing it, and having it signed by the President. It is not done by refusing to vote on justices unless they are nominated by a member of the "correct" party.

We have a government based on a separation of powers. One of the things that means is that one branch doesn't ordinarily get to tell another branch of government what to do. In this case, while it is quite possible to argue that Congress has an obligation to give consideration to judicial nominees submitted to it, there is no means of forcing it to do so.

I think we have a quiet crisis in this country, but it isn't constitutional but rather political. We have a government that is unable to govern, unable to take up, consider and decide important matters. We see this most clearly in it's inability to consider Supreme Court nominations, something it could do up to just a few years ago. As it happens, the nation can struggle along even with the dwindling number of Supreme Court justices we can expect to see in coming years, but can we survive a more immediate and threatening crisis?

My goodness. It is up to Congress to decide how many justices are on the court. It has changed many times

Laws are passed by combined action of the Congress and president. Together they have decided that the Supreme Court has nine justices. Currently it only has eight.

I don't think Senator McCain is acting dishonorably in saying that he will not approve a nominee put forward by a party other than his own. But I am saying that he is a part of a process of national decay, one that may well be irreversible.

You know, when the Democratic majority of the Senate approved or I should say, allowed to be approved, Republican nominee, Clarence Thomas, people like me accused it of political cynicism. We thought they were putting the interests of the party ahead of those of the American people. But how does that decision look in hindsight from a time when senate majority has lost even the capacity to consider a nominee from the other party?

Where I would argue is that you see the balance come in the flow of power to the executive branch as first the legislative and now the judicial branch become dysfunctional.

The founders were really committed to the idea that the institutions of government that they created would be treated by their successors as preeminent; that future legislators and future judges would place the interest of their branches of government ahead of their own. This, of course, didn't happen then, and it isn't happening now.

For me, perhaps the major irony in the history of Congress is how determined right from the start, representatives and senators were to limit their own power by among other things enacting rules limiting their power to act. One example is the senate's power to advise and consent to nominations, particularly judicial nominations. With respect to the Garland nomination, and many, many nominations at lower levels, the senate has simply relinquished this power.

In fact, look at all the efforts to declare his Presidency illegitimate.

He was sued for doing the same immigration enforcement other Presidents did.
He lost.

He was obstructed not just from doing his Constitutional duties, but with gimmicks to make sure he couldn't do any recess appointments in a year where the Senate only met 112 times. They always opened the Senate session simply to block what Dubya did several times.

They criticized his diplomacy and then undercut it at every opportunity, attempting to destroy the Iranian de-nuclearization, complete with inviting Netanyahu to get his nose in foreign policy in Congress. They refused to write a new AUMF after demanding one. They want ISIS gone but can't see why we shouldn't send in more troops. They love to do the executive's job in the press.

All this just for embarrassment and threats intended to neuter the President's power, encourage the Iranian hard-liners, and pretend Americans want to confront Russia militarily.

They call his wife names, they hate the man despite his proud family man essence, his poise, his dignity and grace before intractable problems not of his making. Disrespect drips from the GOP electeds. They will kill Obamacare before they will try to reform it- again to spite the Prez power.

No, power has flowed to McConnell and the Chair of the Ways and Means. The executive has been completely disrespected and opposed even when doing his job. Congress is corrupt and no longer keeps their oath to anything but Grover Norquist.